Before starting with the topic “Decriminalizing Defamation in India” it is imperative to understand the meaning and concept of “defamation”.
The word “defame” means “to harm the reputation of”. Defamation of a person is an offence punishable u/s 499-500 of the Indian Penal Code. The offence can be traced to violation of “right to reputation” which is a genus of the “right to life and liberty” protected under Article 21 of the Constitution of India. If a person’s reputation is harmed, his rights under Article 21 of the Constitution of India are infringed for which he has remedy of torts under civil law and remedy u/s 499-500 of the IPC under the criminal law. The said section provides that any words, signs or representations which harm or intend to harm the reputation of a person would constitute the offence of defamation. There are nine exceptions provided to the said definition and an act or publication is not defamation if it falls under any of these nine exceptions.
A delicate balance
Undoubtedly on one hand, an individual’s right of reputation is protected under Article 21 and at the same time freedom of speech and expression is recognized and protected under Article 19(1)(a) of the Constitution. Since both the rights are protected, one right cannot be given preference over the other and therefore the state whose actions are subject to Article 13 cannot, by way of legislation, indicate a preference on one right over the other. Both the rights have to be harmoniously construed. (Chintaman Rao v. State of M.P., AIR 1951 SC 118).
Creation of criminal remedy creates an imbalance as it has a chilling effect on the exercise of a right of speech. The mere threat of criminal prosecution and the possibility of a prison sentence and fine is intended and directed towards discouraging people from speaking out.
Defamation was sought to be decriminalized on the ground that the colonial law has become antithetical to free speech and is being used for stifling voices. Defamation of an individual by another individual is a civil wrong or tort, it can be remedied by an action for damages. The enabling power in Article 19(2) to impose reasonable restrictions is intended to safeguard the interests of the State and the general public and not of any individual. Criminalizing defamation has the effect of virtually negating the freedom of speech and expression. The law of defamation is unreasonable and vague in as much as even truth is not a complete defence as per the provision. It is only a defence if the matter is concerned with public good which itself is an extremely vague concept and hence is prone to misuse
The rampant misuse of the provisions
There have been numerous instances where the law of defamation has been extensively misused by influential litigants to browbeat or arm twist their opponents.
A large number of civil cases are filed alleging forged wills or civil disputes based on forgery, fabrication and misrepresentations. Section 499 would enable the defendant to take recourse to defamation proceedings against the plaintiff to arm twist the party so that he may not pursue his civil case. In terms of the press, criminal defamation has a chilling effect which leads to suppress a permissible campaign. The threat of prosecution alone is enough to suppress the truth being published.
The procedural safeguards can only stand the test of reasonableness if the Exceptions to Section 499 IPC are taken into consideration at the time of summoning of the accused and burden is placed on the complainant to prove that the case is not covered by any exception listed in section 499.
The Role of Press
The Supreme Court in the case of Ramesh v. State of Madhya Pradesh AIR 1950 SC 124 included freedom of press as a fundamental right under article 19(1)(a) of the Constitution of India. The result was that the press could not be subjected to any restriction by making a law unless that law itself was constitutionally valid and was consistent with clause 2 of Article 19. The freedom of press is well recognized in the case of Indian Express Newspaper vs. Union of India in 1985(1)SCC 641
While considering freedom of speech and expression the function of press and media is exposing abuses of power and corruption of public officials and in keeping them responsible to the people, who they are expected to serve. Philosophically, the ultimate good in free society can be reached only by discovery of truth. The concept of freedom of press originated in England. Prosecution for the expression of opinion in matters relating to science or philosophy were resorted to by the Church and the State; to suppress alleged hearsay, sedition and the corruption of the youth.
In today free world freedom of press is the heart of social and political intercourse. Since freedom of expression includes the freedom to propagate one’s own views as well as of others and to communicate them to others, it follows that the freedom of the Press includes the right to give opinions (subject only to such restrictions, imposed by the State, as are constitutionally permissible). Such views or opinions may be those of the editor or author but also those of other people, printed under his direction.
Supreme Court on decriminalising defamation
The constitutional validity of section 499-500 IPC was challenged before the Supreme Court recently in Subramayam Swamy vs Union of India. The Court has upheld the constitutionality of the said provisions and refused to decriminalise the same. The Court observed that the freedom of speech and expression does not confer an absolute right to speak or publish whatever one chooses and it is not an unrestricted or unbridled licence that may give immunity and prevent punishment for abuse of the freedom. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest. The Supreme Court has opined that the reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech.
The loose ends
In the case of Subramanian Swamy, the Court has not take into consideration:
The effect of criminal defamation as being an indirect censorship on the press.
The said provision has a chilling effect on the freedom of the press and will negatively impact the investigative journalism which is the need of the hour.
The media houses will have to prove the truth of their allegations which process is extremely long and cumbersome and till that time, the editor, journalist and other persons would be treated as an accused and will have to face a lengthy trial.
Criminal cases consist of an onerous procedure for trial i.e. requirement of bail, attendance on every day of hearing, standing in the accused stand several times. Moreover, as per the latest figures there is a pendency of a staggering 3 crore cases in different courts out of which almost 2 crore cases are criminal cases.
There have been gross abuse of such provisions as is evident from the misuse of 498A IPC. The Court has to be alive to the ground realities. Given the case arrears and the slow pace of trials there have been few convictions for criminal defamation. It stifles legitimate speech itself.
The Court has spoken at length about the importance of the reputation of an individual which is a part of Article 21 and has held it to be a justification for the criminalization of the offence of defamation. But the Court fails to consider the loss in reputation and the consequent violation of Article 21 of the person who has been falsely accused in a case of defamation. Under the circumstance, on the one hand even if the right of reputation of complainant is affected, there is competing right of the accused in defamation case, who, after facing a protracted trial has been acquitted. The provision of sections 499-500 are also required to be considered from this aspect.
Two kinds of defamation actions have emerged. First, political interests have adopted defamation law to settle scores and second, powerful entities such as large corporations have exploited weaknesses in defamation law to threaten, harass, and intimidate journalists and critics. In a prosecution for defamation under Section 499 IPC, fair comment would not be protected.
This is the right time the Parliament should act in the matter in public interest. The legislature needs to step in and remove this colonial provision. With criminal defamation laws, critics become criminals and those who wish to participate in the public debate of ideas that characterise democracy face a heightened risk.
Sr. Adv. Sushil Kumar Jain is Senior Advocate, Supreme Court.